Waugh v. . Waugh

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 96 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 97 The jury were instructed that the lands embracing the farms of the plaintiff and defendant had been owned in such a manner as to exclude any practical location; and if the line between the farms could be located by surveys according to the calls of the deeds, that was, of course, the true location, and could not be defeated by any of the statements or admissions of the ancestors of the parties when in possession of both farms. The latter proposition was repeated in a somewhat altered form, though substantially to the same effect, viz. that if the starting point given by the deed could be found, and the lines accurately run and determined by the courses and distances of the deed, the boundaries must be settled by their calls, and could not be altered or affected by the parol evidence. Two propositions were contained in the charge: First. That the lands had been owned in such a way as to exclude any practical location; and, second, that if the line could be located by surveys, according to the calls of the deeds, that was the true location, and could not be defeated by parol statements or admissions of the ancestors when in possession *Page 98 of both farms. As abstract legal propositions, (and in this form they were given to the jury without objection by the defendant,) they seem unobjectionable. The whole dispute was as to the true location of the line between the two farms. Both farms had been owned and occupied by the grandfather and father of the parties for more than half a century, and were used in common as one farm. There was no adverse possession or any holding of one farm as separate and distinct from the other, or any agreement made or act done for the purpose of locating the line. There were, it is true, some loose declarations of the grandfather and father proved to have been made on two or three occasions, that a certain tree, and the stump of a tree, and a rock, were upon the line between the farms. There was not, and could not have been, under the circumstances, any practical location of the line; and it would have been error, upon the facts conceded and proved, to have submitted any such question to the finding of the jury. So, also, the proposition was equally correct, as matter of law, that if the line could be located by surveys according to the calls of the deeds of the two farms, the location thus ascertained would be the true one, and could not be defeated by any of the parol statements or admissions shown to have been made by Robert Waugh and James Waugh, the ancestors of the parties, when in possession of both farms. There was no dispute about the paper title of the parties, and no doubt or difficulty about locating the line by the deeds. It was proved, and indeed not questioned, that the farm described in the deed from Scott was always known as the "homestead," and that Robert Waugh lived and died on it. So, also, it was proved that the farm known as the West place formerly belonged to the brother of Robert Waugh; was conveyed to the latter by the heirs of such brother as early as 1807; and in such conveyance was described as bounded "east by lands belonging to said Robert Waugh," that is, the Scott premises or "homestead." Under these circumstances, the instruction was proper that *Page 99 the boundary must be settled by the deeds, and that the parol evidence could not alter it. But it is now urged by the defendant's counsel, that the case was tried and went to the jury upon an erroneous theory. The question, it is said, as to the line between the farms, and whether the defendant was a trespasser, did not depend upon the courses and distances in the old deeds or any of them; but as the grandfather, Robert Waugh, by his will in 1816, devised to the defendant, his grandson, the "old homestead" whereon he thenlived, the real and sole question was where the west line was, as intended by the testator, or what part of the two hundred acres he intended to give to the defendant under the name of "the homestead whereon he lived at the time he made his will." The difficulty is, there is nothing in the terms of the devise to the defendant, or in the proof given by him, to support such a position. The words of the devise are: "I give and bequeath to my grandson, Robert Waugh, the old homestead, whereon I lived at the time of making my will, containing one hundred acres." This followed a devise to the testator's son "of one hundred acres of land which formerly belonged to my [his] brother James Waugh," which was the West place, as distinguished from the "old homestead." The devise to the grandson was the farm known and designated as the "old homestead," on which the testator is described as living at the time of making his will. The gift was of the tract of land known as the testator's "homestead," and not of a particular tract, within established boundaries, occupied by the testator at the time of making his will. In short, the words "whereon I lived at the time of making my will," is not in any way descriptive, or intended to be, of the subject of the devise. The devise to the defendant was of the "old homestead," and to the father of the plaintiff "the one hundred acres which were formerly owned by the testator's brother James." These were definite descriptions, and capable *Page 100 of being exactly located by the deeds. There was no ambiguity, and, therefore, no necessity for or propriety in resorting to parol proof of the testator's intentions. But construing the words of the devise as the defendant claims, there was no competent proof that Robert Waugh, the grandfather, before making his will, established any division line between the farms, without regard to the description in the deeds; or that he occupied the "homestead" at the time of the devise in reference to such designated line; or that he intended to devise to his grandson, under the name of the "old homestead," the farm on the east side of such established line, and to his son the farm on the west side. The whole evidence on the part of the defendant was, that some forty or fifty years before the trial Robert Waugh casually pointed to a hickory tree, and to the stump of another tree in a meadow where he was plowing, and said they were line trees; and even to rebut this it was shown that the grandfather occupied both farms as one up to his death, and that he repeatedly declared that the line between them had never been run, and he did not know where it ran. The evidence did not tend to show the establishment of any division line by Robert Waugh in his lifetime, or any designation of any portion of the two hundred acres as the "old homestead" expressed in the will; but if it had, there was no request whatever on the part of the defendant that any question of fact should be submitted to the jury. If it were proper that the evidence should have been submitted to the jury to determine where the testator intended the west line of the "old homestead" should be, and thus identify the farm given by the will to the defendant, the counsel of the latter should have requested its submission, and not have contented himself with excepting to legal propositions in themselves unobjectionable. It is palpable, however, that no questions of the kind could properly have been raised on the proof; and had the court submitted the question where the west line of *Page 101 the "old homestead" was, as intended by the testator, it would have been error. The judgment of the Supreme Court should be affirmed.